Wisconsin Towns Association
Richard J. Stadelman, Executive Director W7686 County Road MMM
Shawano, Wis. 54166
Tel. (715) 526-3157
Fax (715) 524-3917 Email: email@example.com
To: Senate Committee on Workforce Development, Forestry, Mining, and Revenue
Assembly Committee on Jobs, Economy, and Mining
From: Richard J. Stadelman, Executive Director
Re: SB 632 and AB 816 relating to regulation of nonmetallic mining Date of Memo: March 4, 2014
Wisconsin Towns Association Board of Directors voted on Monday, March 3, 2014 to oppose SB 632 and AB 816 which relate to regulation of nonmetallic mining. This is a change in position from what the Executive Director had announced last week. This change came because many town officers and others contacted the Association via email, telephone and in person at the District meeting in Eau Claire on Friday, February 28, 2014 and expressed their concerns and opposition to these bills. The board of directors opposes these bills for the reasons stated below.
First, the Board of Directors and staff do want to commend Senator Tiffany and Rep. Ballweg the authors of the bills (SB 349 and AB 476) which were introduced last fall also relating to regulation of nonmetallic mining for hearing our concerns on those bills. SB 632 and AB 816 do not propose some of the items that were objectionable to our Association in those earlier bills. Specifically, SB 632 and AB 816 do not prevent towns and villages from adopting licensing ordinances in the future. These later bills do not preempt local governments from adopting other environmental regulations as the earlier bills did. SB 632 and AB 816 do not address any required procedures on entering road agreements with users. These issues were of major concern for Wisconsin Towns Association in opposing SB 349 and AB 476.
While the intent of the current bills, SB 632 and AB 816, are to codify the “diminishing asset rule” for nonmetallic mining, which is a court doctrine, our Association believes that these bills go beyond what the court doctrine was intended to protect for nonmetallic mining as we see the industry today. Sections 1 through 9 of SB 632 and AB 816 are intended to codify this doctrine in relation to zoning, which is what the original two court of appeals decisions were decided upon. It is important to note however, that the court decisions related to gravel pits (in the Schroeder v. Dane County Board of Adjustment, 228 Wis. 2d 324 (Ct. Apps. 1999) case) the land involved was an adjacent forty to an operating gravel pit on 40 acres. The court case held that “when a single owner has contiguous parcels on which an excavation operation is in existence, all land which constitutes an integral part of the operation is deemed ‘in use’ notwithstanding the fact that a particular portion may not be under actual excavation.”
While Sec. 1 through 9 of SB 632 and AB 816 provide language to codify the doctrine of “diminishing assets for non-metallic mining,” the bill expands the doctrine beyond “single ownership” of a parcel to contiguous land “under common ownership or control” of the person who owns the land or controls the land on which mining was occurring, to include “leasehold interests.” This language is of great concern to people living in the proximity of industrial sand mines in Wisconsin, because unlike the traditional gravel pits on 40 acre parcels or adjoining 40s, industrial sand mines are in the hundreds of acres even exceeding 2,000 acres in some cases. It is our belief that the diminishing asset rule created by the court cases did not contemplate the use of leasehold interests for the size of industrial sand minds that exist today, that would be allowed to be “grandfathered in” under the diminishing asset rule as written by these bills.
Section 10 on page 7 and 8 of the bills would still allow towns and villages to adopt licensing ordinances but these ordinances would apply only to nonmetallic operations that begin operation after the adoption of the ordinance. Pre-existing nonmetallic operations would not be subject to new ordinances. The biggest concern about this section is that if a town or village adopted a licensing ordinance, they would not be able to amend that ordinance as it applies to any new operations that started after the original ordinance was in place. This is of concern in relation to industrial sand mining because as new technology and health impacts may be identified, if the original ordinance does not address these new issues the ordinance can not be amended to apply to existing nonmetallic operations. We believe there needs to be recognition that if new technology and health concerns arise in the future that local governments should be allowed to amend their ordinances to incorporate reasonable regulations that will protect public health and safety.
In Section 10 at lines 12 through 23 of SB 632 and AB 816 these bills would apply the diminishing asset protections to “off-site nometallic mineral processing facilities” and “off- site transportation facilities related to nonmetallic mining.” This is a vast expansion of the court doctrine that originally decided upon facts of a gravel pit on two forty acre parcels. The expansion of “off-site facilities” goes beyond what is necessary to protect nonmetallic mining in this state. In addition, according to Legislative Counsel’s comments, lines 22 and 23 of page 8 of the bills will require that any existing ordinances of “off-site facilities” must have been written separately from the nonmetallic mining ordinances that may have been written in the past. This is a new standard which has not been contemplated until this bill was introduced. This will dramatically limit towns, villages, and cities in regulating existing “off- site facilities.” Lines 18 to 21 on page 8 even extend these protections to “off-site facilities” at the time the application for such a site is submitted. Many of these “off-site facilities” have never been contemplated by local governments, thus these bills will in effect limit any new ordinances or amendments to regulate these “off-site facilities.”
On page 10 of SB 632 and AB 816 at Sec. 17, lines 10 through 12, there is language to give registered nonmetallic reserves the same grandfathering protections as the court doctrine of diminishing assets. While registration of nonmetallic mining has been in the law since 1997, these bills will give such protections to possible nonmetallic mining sites that may not open for nearly 20 years out. By that time, again, new technology and health impacts may warrant updated ordinances, which these bills prevent for even the sites that only have been
registered, but not even opened. Also the word “prevent” on line 11 on page 10, could be problematic, because it appears to allow new ordinances to apply to registered nonmetallic reserves that have not yet opened, but it will raise the question whether a licensing ordinance “prevents” the operator from operating on the registered land. Some companies have already said that limitations in some ordinances such as hours of operation, berm requirements, blasting requirements will “prevent” the site from operating economically to the optimum. The term “prevent” will invite litigation on whether a company is prevented from operating or only being regulated to protect public health and safety.
SB 632 and AB 816 in our opinion go beyond what the court doctrine enunciated in the earlier court of appeals decisions intended. The expansion of the doctrine to licensing ordinances and “off-site facilities” is beyond what the courts would hold as it applies to industrial sand mining as is occurring in Wisconsin at this time. These bills are not needed to protect the nonmetallic mining industry, in particular the industrial sand mines of the state. No existing ordinances have prevented any industrial sand mines from operating once approved. We ask the legislature not to pass SB 632 and AB 816.